58 Ind. App. 381 | Ind. Ct. App. | 1914
On a former appeal this cause was reversed, and a new trial ordered for error in excluding offered testimony. Chicago, etc., R. Co. v. Gorman (1911), 47 Ind. App. 432, 94 N. E. 730. A second trial was had on the issues formed on an amended complaint in three paragraphs.
It is disclosed by the complaint that on October 15, 1907, appellant’s railroad extended southward through Washington County, and that at a point south of Norris Station, it intersected a public highway, which also extended southward from the station. On that day appellee was driving a peddling wagon drawn by three horses, southward along the highway. As he drove the wagon onto the crossing, a south bound freight train operated by appellant collided with appellee and with his wagon and horses, whereby the horses were killed and the wagon and its contents destroyed and appellee seriously injured. Facts are alleged in each paragraph, charging appellant with negligence in operating the train. By the first paragraph, appellee seeks to recover for the killing of the horses and the destruction of the property; by the second, he seeks a recovery for injuries to his person, and by the third, he seeks recovery for both his
The court did not err in overruling appellant’s motion for judgment on the answers of the jury to the interrogatories propounded by the court.
In so far as concerns the sounding of the whistle, three distinct blasts at the eighty-rod point or at the hundred-rod point, or at any point between such points satisfies the statute. An averment that the whistle was not sounded when the engine was within eighty rods of -the crossing does not exclude a case where the statute may have been strictly complied with. The subsequent averment that the train approached the crossing, without sounding the whistle or giving any signal is not sufficient as an allegation that the whistle was not sounded as required by statute. Said subsequent averment follows closely after such quoted averments, and the reasonable inference from such subsequent averment is that the pleader is declaring respecting said space within eighty rods.of the crossing. Neither paragraph of the complaint contains a sufficient averment that the statute was violated in the matter of failing to sound the whistle. Appellant concedes that each paragraph sufficiently charges the violation of the statute by a failure to ring the bell. It does not follow, however, that the giving of said instructions constituted available or prejudicial error.
At the trial, appellee introduced evidence without objection respecting the failure of appellant to give the statutory signals. Appellant in turn, by a number of witnesses, proved the location of the whistling post for said crossing, and its distance from the crossing, and introduced testimony that the statutory signals were given. It plainly appears from the record that the case was tried on the theory that the question of whether the whistle was sounded as required by the statute was in issue. That appellant recognized that such question was in issue appears from the fact that appellant tendered and procured to be given an instruction con-
the satisfaction of the court (§400 Burns 1914, §391 R. S. 1881); also that where the variance is not material as provided by §400, supra, the court may order an immediate amendment (§401 Burns 1914, §392 R. S. 1881); also that when a variance might have been cured by amendment below, this court and the Supreme Court will consider such amendment as in fact made. §700 Burns 1914, §658 R. S. 1881. There is no showing that appellant was- to any extent misled to its prejudice by said defect in the complaint. Such being the case, it is the duty of this court, under said statutes, to consider the complaint as having been amended below in such a manner as to raise the issue of whether the locomotive whistle was sounded as required by statute. Pittsburgh, etc., R. Co. v. Warrum (1908), 42 Ind. App. 179, 195, 82 N. E. 934, 84 N. E. 356; City of Indianapolis v. City Bond Co. (1908), 42 Ind. App. 470, 472, 84 N. E. 20; Helms v. Appleton (1909), 43 Ind. App. 482, 489, 85 N. E. 733, 86 N. E. 1023; Parry Mfg. Co. v. Heaton (1908), 41 Ind. App. 81, 85, 83 N. E. 510; Louisville, etc., Traction Co. v. Lloyd (1915), ante 39, 105 N. E. 519; Raymond v. Wathen (1895), 142 Ind. 367, 41 N. E. 815; Indianapolis Traction, etc., Co. v. Lawson (1906), 143 Fed. 834, 74 C. C. A. 630, 6 Ann. Cas. 666, 5 L. R. A. (N. S.) 721; 2 R. C. L. 82. Moreover, appellant by introducing evidence on such question, and especially by suggesting it in its tendered instructions as indicated, invited the error of which it now complains. Under such circumstances, appellant is estopped from asserting that there is prejudicial
Appellant criticizes instructions Nos. 14, 15 and 16 given at appellee’s request, on the ground that the instructions are too general in their exposition of the principles of reasonable care, as applied to the issue of contributory negligence. The court entered into these principles fully and specifically, by instructions given at appellant’s request.
We find no substantial error in other questions presented and discussed. It is urged that the evidence shows appellee to have been guilty of contributory negligence. Considering the highly obstructed nature of the crossing, and the evidence as to the care exercised by appellee, such issue was properly for the determination of the jury. There is no error for which the judgment should be reversed. Judgment affirmed.
Note.—Reported in 106 N. E. 897. As to the care which railroad company must exercise at crossings of highways, see 26 Am. Rep. 207. Failure of railroad company to give statutory signals on approaching crossing as excuse for traveler’s contributory negligence, see 6 Ann. Cas. 78. Admissibility of opinion as to future corisea